United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on the oral and written Findings
and Recommendation and Order (Filing Nos. 51, 53) of the
magistrate judge recommending the Court deny (1) defendant
Sherman Johnson, Jr.'s (“Johnson”) Motion to
Suppress (Filing No. 42) and (2) defendant Sarkis
Labachyan's (“Labachyan”) Motion to Suppress
(Filing No. 40). Johnson and Labachyan object to the
magistrate judge's Findings and Recommendations. For the
reasons stated below, both Johnson's and Labachyan's
objections are overruled and both Motions to Suppress are
21, 2016, Johnson and Labachyan were traveling east on
Interstate 80 in Omaha, Nebraska, in a rented white Toyota
minivan with California license plates. Douglas County
Sheriff's Deputy Eric Olson (“Deputy Olson”)
pulled the minivan over for following too closely in
violation of Neb. Rev. Stat. § 60-6, 140(1). Labachyan
was driving and Johnson was sleeping on an inflatable
mattress in the back. Deputy Olson had been working criminal
interdiction along the interstate when he pulled the minivan
over. At a hearing regarding the Motions to Suppress, Deputy
Olson admitted the purpose of working interdiction is to use
traffic violations as a way to “troll” for
possible violators of narcotics laws. When Deputy Olson
observed about four vehicles in a group that failed to have
sufficient stopping distance between each of the cars, Deputy
Olson chose to pull over the third car in the group because
it had California license plates and his practice was to
target out-of-state vehicles.
Olson approached the vehicle and noticed it had a
“lived-in look, ” with Johnson sleeping in the
back and numerous food and drink wrappers strewn about.
Deputy Olson told Labachyan the reason he pulled him over,
took his license and the rental agreement, and asked
Labachyan to sit in the patrol car while Deputy Olson
performed a record check. While Deputy Olson performed the
record check, he interviewed Labachyan about his destination
and purpose for the trip. During the interview, Deputy Olson
repeatedly informed Labachyan that he would likely give him a
told Deputy Olson that he and Johnson were traveling to East
Moline, Illinois, to see Johnson's Aunt Dorothy who had
recently been in the hospital, and that they planned to stay
there for a couple of days. Deputy Olson thought this was
strange since the rental agreement would expire in two days,
although he conceded that a rental could be extended by
simply calling the rental agency and that drug dealers would
not purposely let their rental expire. Because Johnson was
the renter of the vehicle, Deputy Olson went back to the
Toyota to get Johnson's information and ask him several
Olson asked Johnson about his travel plans while Johnson was
looking for his identification. Johnson stated they were
briefly stopping in Lincoln, Nebraska, to visit his
cousin before going to East Moline to see his
Aunt Jenette where he planned to stay for a couple of days.
Deputy Olson asked Johnson if he or Labachyan had ever been
arrested; Johnson admitted he had been arrested for
“weed, ” but he stated Labachyan had never been
Olson returned to the patrol car and asked Labachyan who the
pair was planning on visiting and if they were planning on
stopping before East Moline. Labachyan said they were
visiting family and did not plan to stop before East Moline.
Deputy Olson asked if the family member's name was
Dorothy, to which Labachyan replied that it was a big family.
Deputy Olson asked Labachyan if he had ever been arrested,
and Labachyan replied that he had never been arrested.
Olson then asked Labachyan if there were any weapons in the
car and Labachyan said there were none. While running a
record check for arrests, Deputy Olson asked Labachyan why
they chose to drive instead of fly. Labachyan said they
should have flown but drove to see the scenery. As Deputy
Olson conducted the traffic stop, another officer, Deputy
David Wintle (“Deputy Wintle”) arrived on the
scene in response to Deputy Olson's earlier request for
Olson's record check uncovered that Labachyan had never
been arrested but was stopped in Lancaster County, Nebraska,
a few months earlier while with Johnson. Deputy Olson was
also told that officers had seized $19, 000 of suspected
money and some personal use marijuana from the pair. Although
the report of the stop was accurate, the information that
officers had seized money was inaccurate. Deputy Olson
asked Labachyan if he had been stopped in Lancaster County
and had money or marijuana taken from him. Labachyan admitted
he had been stopped but denied having money or marijuana
taken from him.
Olson asked Labachyan in succession if there were “any
large amounts of currency in the vehicle, ”
“anything illegal in the vehicle, ” “any
large amounts of marijuana in the vehicle, ”
“heroin, ” “cocaine, ”
“methamphetamine, ” or “weapons of any
sort.” Labachyan responded “no” to each of
the questions in turn. Deputy Olson asked why Dorothy had
been in the hospital and Labachyan answered that it was heart
stress. Deputy Olson then ran an arrest check on Johnson and
asked Labachyan if they had stopped in Lincoln or if Johnson
had family in Lincoln. Labachyan said they had not stopped in
Lincoln but Johnson did have family there.
Olson expressed surprise at the cost of the rental, about $1,
000, to which Labachyan replied that he might seek a
discount. Deputy Olson concluded his arrest check on Johnson
and gave Labachyan an oral warning for the traffic violation.
Deputy Olson then told Labachyan that he was going to ask
Johnson some more questions. Labachyan attempted to exit the
vehicle, but Deputy Olson motioned for him to close the door
and told him to “just stay right here for a
second.” Deputy Olson approached the Toyota where
Johnson was on the phone. Deputy Olson asked Johnson to get
off the phone and they had a brief conversation about
Johnson's family. The following exchange then took place:
Deputy Olson: I'm going to give [Labachyan] a warning for
Following too close and speeding, okay? He tells me
there's nothing illegal inside the vehicle, is that
Johnson: No there's not.
Deputy Olson: Okay. There's no narcotics of any sort? No
weapons of any sort?
Deputy Olson: No large amounts of currency?
Deputy Olson: Were you guys stopped in April in Lancaster
Johnson: I believe so yes.
Deputy Olson: Did they take some marijuana from you? Johnson:
Yeah, that was just some recreational-Deputy Olson: You
don't have anything like that now? Johnson: Nothing.
Deputy Olson: Here's your driver's license.
Johnson then offered that he had warned Labachyan in the past
to drive more carefully. Deputy Olson asked Johnson some more
questions, including the pair's current employment
status. The exchange then resumed:
Deputy Olson: He said there's nothing illegal inside
Johnson: No, of course not.
Deputy Olson: Ok, can we search this ...